This is the latest in a series of blogs about the so-called “gig economy” and the rise in flexible jobs which do not neatly fall into any of the existing definition of employment status. In a move to address this issue the Government commissioned the Taylor report which has recently been published.
As a recap there are currently three categories of employment status: “employee,” “worker” and “self-employed independent contractor.” There are statutory definitions for the first two categories but the definitions are extremely broad, meaning a significant amount of case law has been generated by people trying to determine what their true employment status is. The law in this area has been adapted over the years in line with this case law and societal developments with the current focus being on the following when determining employment status:
- The amount of control exerted over the individual;
- How integrated the individual is into the company;
- Whether the individual is obligated to do work offered by the company and whether the company is obliged to provide work;
- Whether the individual is required to perform work personally;
- Who provides the tools and equipment to do the job;
- Who bears the risk of the success of failure of the job; and
- Whether the individual has the opportunity to profit from their own good performance.
A slightly different test is applied by HMRC where a binary system of either “employee” or “self-employed” is used for tax purposes. This can quite clearly become confusing, especially to those individuals potentially being exploited on the basis of their employment status.
The Taylor Review of Modern Working Practices was published recently in order to look at this situation with the premise that “people should understand what employment rights they have”. The review makes wide-ranging recommendations for changes in the law, however this article focuses on the proposed changes to employment status.
The review recommends that the three tier system of status should remain but there should be a relabeling from “worker” to “dependent contractor”. The difference here will be to remove the spotlight from “personal service” which is currently a prerequisite for someone to be classified as a worker. This avoids the current situation where a cleverly drafted consultancy agreement which includes a clause giving the individual the right to substitute themselves for someone else at work can result in a finding that the individual is self-employed despite the individual not being entitled to control their rate of pay, hours of work or how they do the job.
Instead of personal service the review recommends that the law should focus on the amount of control the company has over the individual. This should make it harder for companies to “hide behind” substitution clauses in contracts. The review assures us that the test of whether someone is a “dependent contractor” will not simply be a test of control in terms of supervision of day-to-day activities but as no new definition of “dependent contractor” is proposed it seems difficult to escape the idea that a fact specific approach to the control test will still be necessary when determining whether someone is a dependent contractor in the same way as is required now when determining whether someone is a worker.
There are specific suggestions for dependent contractors in the review and suggestions for how the law on enforcement could be improved, such as:
- Dependent contractors should have the right to a written statement at the start of their engagement, similar to employees; and
- Individuals can request an assessment of their employment status as a preliminary issue prior to bringing an Employment Tribunal claim without a requirement to pay a fee.
The report also suggests that the burden should be on the company to show the individual is not an employee or a dependent contractor in these types of cases. The review also recommends that there should be more consistency between the definition of employment status for tax and employment law purposes.
The review has generated some good ideas for how the law in this area can be simplified and clarified for the benefit of both companies and those working in the gig economy. However, as with all Government reports a lot will depend on how many of the recommendations become law.